The Representation of the People Act
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Legislators convicted of crime/ Criminals in politics
MPs, MLAs will be disqualified on date of conviction: SC
PTI | Jul 10, 2013
NewDelhi: In a judgment that may help decriminalize politics, the Supreme Court on Wednesday struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts.
The apex court also made it clear that MPs, MLAs and MLCs would stand disqualified on the date of conviction.
The court said Parliament had exceeded its powers by enacting the provision (Section 8(4) of the Representation of the People Act) that permits a convicted lawmaker to remain in office on the ground that appeals have been filed and are pending. The bench of justices A K Patnaik and S J Mukhopadhaya, in its 41-page verdict, however, clarified that convicted lawmakers whose appeals are pending prior to pronouncement of Wednesday’s verdict are “saved” as it would come into effect prospectively.
The court discussed Article 101(3)(a) and 190(3)(a) of the Constitution that deal with the issue of disqualification of MPs of either House of Parliament and MLA and MLCs of the legislative assembly or legislative council of the state respectively. PTI
Breather for legislators who’ve filed appeals
“We also hold that the provisions of Article 101 (3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature.
“Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the (RP) Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires to the Constitution,” it said.
It said as “Parliament had no power to enact sub-section (4) of Section 8 of the Act” and hence, it would not deal with other issues raised in the two PILs filed by a lawyer Lily Thomas and NGO Lok Prahari. The PILs had sought striking down of this provision on the ground that they violate certain constitutional provisions which, among other things, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.
The SC said, “Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in subsection (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not be affected by the declaration now made by us in this judgement.
“This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgement is pronounced by this Court.”
It, however, said if any sitting MPs, MLAs of MLCs are convicted after the pronouncement of this verdict “his membership of Parliament or the State Legislature will not be saved by subsection (4) of Section 8 of the Act which we have by this judgement declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.” PTI
Persons in jail or police custody cannot contest elections to legislative bodies
Double whammy: Netas in jail can’t fight polls, says SC
TNN & AGENCIES 2013/07/12
New Delhi: The days of politicians fighting elections from jail are over. The Supreme Court has ruled that a person, who is in jail or in police custody, cannot contest elections to legislative bodies.
The far-reaching order was passed by the apex court along with its landmark verdict that MPs, MLAs and MLCs would be disqualified the day they are convicted. This double whammy against criminals in Indian legislatures is expected to go a long way in cleaning up politics.
An apex court bench of Justices A K Patnaik and S J Mukhopadhayay ruled that only an “elector” can contest the polls and he/she forfeits the right to vote during imprisonment or in police custody. However, the court said this disqualification would not be applicable to a person subjected to preventive detention under any law.
The court based its order on provisions of the Representation of the People Act. Sections 4 and 5 of the Act lay down that in order to be elected to Parliament or state legislatures, the individual must be an elector.
SC verdict to help clean up electoral process
The bench also referred to Section 62(5) of the Act which says that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.
Reading Sections 4, 5 and 62(5) together, the apex court came to the conclusion that a person in jail or police custody cannot contest elections.
Going by the court’s reasoning, it appears that this ineligibility will not hold back a politician if he or she is out of jail before the date for filing papers. However, it will still be a drastic change from the current scheme of things where politicians have not only contested but also won elections from behind bars.
George Fernandes and A K Roy, for example, won elections while in jail during Emergency in 1977. “Ba[h]ubalis” and criminals with immense political clout, across party lines, have since regularly contested and won elections while in jail.
“We do not find any infirmity in the findings of the high vourt in the impugned common order that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State,” the apex court said.
In its landmark judgment on Wednesday, the same bench had struck down a provision in the Representation of the People Act that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts.
Disqualification of elected representative if convicted
A backgrounder: The requirements and the procedure
Apurva Vishwanath, March 26, 2023: The Indian Express
Disqualification of a lawmaker is prescribed in three situations. First is through the Articles 102(1) and 191(1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively. The grounds here include holding an office of profit, being of unsound mind or insolvent or not having valid citizenship.
The second prescription of disqualification is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
The third prescription is under The Representation of The People Act (RPA), 1951. This law provides for disqualification for conviction in criminal cases.
What does the RPA say?
There are several provisions that deal with disqualification under the RPA. Section 9 deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker. Section 10 deals with disqualification for failure to lodge an account of election expenses. A key provision, Section 11, deals with disqualification for corrupt practices.
Section 8 of the RPA deals with disqualification for conviction of offences. The provision is aimed at “preventing criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.
First, disqualification is triggered for conviction under certain offences listed in Section 8(1) of The Representation of The People Act. This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election. Senior Samajwadi Party leader Azam Khan lost his Uttar Pradesh Assembly membership in October 2022 after he was convicted in a hate speech case. Defamation does not fall in this list.
Section 8(2) also lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
Section 8(3) states: “A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”
How does the disqualification operate?
The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
In a 2018 decision in ‘Lok Prahari v Union of India’, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”
Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), but a stay of conviction. Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending. This is akin to releasing the appellant on bail.
How has this law changed?
Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, lawmakers could file an appeal against the sentence before the High Court.
However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.
Laws and judgements on disqualification
From: March 24, 2023: The Times of India
See graphic:
Laws and judgements on disqualification
EC can take up with assembly/ Parliament to notify disqualification of representative
In a startling disclosure, the Election Commission informed the Supreme Court on Monday that a UP minister was convicted and sentenced to three years imprisonment but his disqualification was not notified by the assembly , allowing him to remain an MLA for one-and-a-half years.
The Representation of the People Act envisages disqualification of an elected representative if he she is convicted for a crime and sentenced to more than two years' imprisonment. The SC had struck down a provision that permitted the representative to continue in the House if heshe merely filed an appeal against the conviction and sentence.
Appearing for the EC, senior advocate Meenakshi Arora told a bench headed by Chief Justice T S Thakur that the commission could initiate the process of holding elections in the constituency from where the convicted MLA or MP belong ed only after the assembly or Parliament notified disqualification of the elected representative and declared the seat vacant.
A PIL filed by NGO `Lok Prahari' through its secretary S N Shukla had informed the SC that courts in the hinterland did not have a practice to inform the EC about conviction and sentence of elected representatives, allowing them to continue in contravention of RP Act provisions.
The bench found Shukla's plea reasonable. But Arora pointed out that the EC on its own was not empowered under the law to declare a seat vacant following a person's conviction and sentence by a court. Additional solicitor general Maninder Singh too informed the court that under the rules, the EC could not hold election to a seat unless it was declared vacant by the concerned House to which the convicted representative belonged.
In the UP case, Arora informed the court that the state government kept the matter pending by unnecessarily seeking opinion from different quarters and then referring the matter to the governor.
The bench said if a convicted MP or MLA got a stay on hisher conviction and sentence prior to holding of elections by the EC, heshe could continue. “But if the EC comes to know of conviction and sentence of an MP or MLA, it could also take up the issue with the concerned authorities in assembly and Parliament to issue appropriate notification declaring disqualification of the representative and vacancy of the seat,“ the CJI said.
Legal experts said the two verdicts would force political parties to make sure that candidates facing criminal charges are not fielded.
The court had in Wednesday’s judgement held that Parliament exceeded its powers by enacting the provision (Section 8(4) of the Representation of the People Act) that gives a convicted lawmaker the power to remain in office on the ground that appeals have been filed and pending.
The sub-section 8(4), which was struck down, said a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.
Politicians disqualified
1973- 2022
From: March 24, 2023: The Times of India
See graphic:
Elected representatives disqualified between 1973- 2022, some prominent cases
Details
March 24, 2023: The Times of India Here are some of the lawmakers suspended upon conviction and sentencing in criminal cases:
Lalu Prasad:
The RJD supremo was disqualified from the Lok Sabha after his conviction in the fodder scam case in September 2013. He was an MP from Saran in Bihar.
J Jayalalithaa:
AIADMK supremo J Jayalalithaa was disqualified from the Tamil Nadu Assembly in September 2014 after she was sentenced to four years in jail in a disproportionate assets case. She was the chief minister of Tamil Nadu at the time of her disqualification and had to resign from the post.
P P Mohammed Faizal:
Lakshadweep MP P P Mohammed Faisal of the Nationalist Congress Party stood automatically disqualified after he was sentenced to 10 years in jail in January 2023 in connection with an attempt to murder case. However, the Kerala High Court later suspended his conviction and sentence. According to the MP, the Lok Sabha Secretariat is yet to issue a notification revoking his disqualification.
Azam Khan:
Samajwadi Party leader Azam Khan was disqualified from the Uttar Pradesh Assembly in October 2022 after a court sentenced him to three years in jail in a 2019 hate speech case. He represented Rampur Sadar in the Assembly.
Anil Kumar Sahni:
RJD MLA Anil Kumar Sahni was disqualified from the Bihar Assembly in October 2022 after he was sentenced to three years in jail in a case of fraud. He represented the Kurhani assembly seat.
He was held guilty of attempting to avail travel allowance in 2012 using forged Air India e-tickets without having undertaken the journeys. Sahni, who was a JD(U) Rajya Sabha MP at the time of the attempted fraud, had submitted claims of Rs 23.71 lakh.
Vikram Singh Saini:
BJP MLA Vikram Singh Saini was disqualified from the Uttar Pradesh Legislative Assembly with effect from October 2022 after he was sentenced to two years of imprisonment in a 2013 Muzaffarnagar riots case. Saini was an MLA from Khatauli in Muzaffarnagar.
Pradeep Chaudhary:
Congress MLA Pradeep Chaudhary was disqualified from the Haryana Assembly in January 2021 after he was sentenced to a three-year jail term in an assault case. He was an MLA from Kalka.
Kuldeep Singh Sengar:
Kuldeep Singh Sengar was disqualified from the Uttar Pradesh Assembly in February 2020 following his conviction in a rape case. Sengar, who was elected from the Bangarmau constituency in Unnao, was earlier expelled by the BJP.
Abdullah Azam Khan:
Samajwadi Party MLA Abdullah Azam Khan was disqualified from the Uttar Pradesh Assembly in February 2023, days after a court sentenced him to two-year imprisonment in a 15-year-old case. He represented Suar in Rampur district in the Assembly.
The case against Abdullah Azam Khan, the son of Azam Khan, pertained to a dharna on a highway after his cavalcade was stopped by police for checking following an attack on a CRPF camp in Rampur on December 31, 2007.
Anant Singh:
RJD MLA Anant Singh was disqualified from the Bihar Assembly in July 2022 after being convicted in a case related to the recovery of arms and ammunition from his residence. Singh was an MLA from Mokama in Patna district
See also
The Representation of the People Act
